Should the NCAA punish Penn State for “lack of institutional control?”

The NCAA may find the requisite authority to penalize Penn State University for a lack of institutional control, but it should not exercise its authority to punish the school.

The idea of institutional control exists to clarify the notion that responsibility follows the chain of command and ultimately ends with the institution itself. Article 6.1 of the NCAA’s Constitution states that “[t]he control and responsibility for the conduct of intercollegiate athletics shall be exercised by the institution itself and by the conference(s).” Thus, the institution is responsible for the actions of its staff, students, and related third parties. The president or chancellor of the institution, as the institution’s figurehead, bears the final responsibility “for the conduct of the intercollegiate athletics program.” (Art. 6.1.1). How the organization is run and the decisions made by its members are ultimately the responsibility of the president, the board, and the institution itself. A member institution of the NCAA must bear this in mind as it conducts its business.

The NCAA’s authority to penalize Penn State will be based on the extent to which Jerry Sandusky’s actions and the ensuing cover-up violated NCAA rules. Article 10 of NCAA Division 1 manual states that “[i]ndividuals employed by a member institution to administer, conduct or coach intercollegiate athletics . . . shall act with honesty and sportsmanship at all times.” Rule 10.1(d) indicates that the cover-up that occurred protecting Sandusky’s actions would also run afoul of the NCAA code of ethical conduct:

“Unethical conduct . . . . may include, but is not limited to . . . (d) knowingly furnishing or knowingly influencing others to furnish the NCAA or the individual’s institution false or misleading information concerning an individual’s involvement in or knowledge of matters relevant to a possible violation of an NCAA regulation.”

Sandusky’s actions were criminal and disgusting. He has been publicly shamed and the criminal trial against him will conclude with his rightfully deserved punishment. To say that the resulting cover-up was just as heinous would be an understatement. Penn State allowed Sandusky to continue working at the school when its officials knew of his actions and knew that more children could be harmed on its campus. Nevertheless, the NCAA should not have the power to punish Penn State.

The above cited rules demonstrate the NCAA’s power to punish the school. While vague, the requirement that administrators and coaches exhibit “honesty” and “sportsmanship” clearly could encompass Sandusky’s actions and the subsequent cover-up. In light of the facts, the NCAA could determine that this situation indicates a lack of institutional control. I do not believe that it should.

The NCAA exists to improve and promote intercollegiate athletics. All of the NCAA’s purposes, as listed in its Constitution, concern the preservation of amateur athletic competition. It is not concerned with criminal matters that concern a single school. No part of the current scandal touches on the competitiveness of Penn State against any other school. This is a situation that concerns Penn State alone. The Commonwealth of Pennsylvania is prosecuting Sandusky and others involved in the cover-up. Civil suits are sure to follow. Penn State will likely issue its own penalties.

There is, however, no role for the NCAA to play. If the NCAA were to step in and punish and sanction the school, especially if it were to impose the “death penalty,” it would unreasonably be punishing Penn State’s student-athletes, its coaches, student body, administration, and reputation.

The NCAA has every right to be as shocked and horrified by these events as the rest of us. However, it should not use its position of authority to inflict unnecessary and unreasonable punishment upon the school.

John M. Burnor is a 3L at Quinnipiac Law School and has a concentration in Intellectual Property Law. John is a Student Columnist for Connecticut Sports Law.

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